MANU/SC/0710/2005

Equivalent/Neutral Citation: 2005(35)AIC 88, AIR2005SC 4446, 2005(6)ALD1(SC ), 2005 (61) ALR 647, 2006(1)ALT4(SC ), 2005 (4) C C C 46 ,
(SC Suppl)2006(2)C HN160, 101(2006)C LT5(SC ), 2005(5)C TC 133, 2005(II)C LR(SC )688, 2005/INSC /444, [2006(3)JC R222(SC )], JT2005(8)SC 561,
2006-2-LW85, 2005(4)RC R(C ivil)260, 2006 100 RD394, RLW2005(4)SC 2459, 2005(7)SC ALE533, (2005)7SC C 791, [2005]Supp3SC R495

IN THE SUPREME COURT OF INDIA

Appeal (civil) 2726 of 2000
Decided On: 26.09.2005
Harshad Chiman Lal Modi Vs. DLF Universal and Ors.
Hon'ble Judges/Coram:
Dr. Arijit Pasayat and C.K. Thakker, JJ.
Case Note:
Civil -Jurisdiction - Code of Civil Procedure, 1908 Order 6, Rule 17 and Section
16 - Appellant entered into an agreement with respondent for purchase of
plot situated in Gurgaon - Head office of respondent was also situated in
Gurgaon - Despite regular payment of installments by appellant, a contract
was unilaterally cancelled by respondent - Suit against same was filed in
Delhi High Court which was later on transferred to District Court, Delhi -
Question which arose for consideration was as to whether Delhi Civil court
has jurisdiction to try and entertain the present suit - District Court held in
negative and returned the plaint to appellant to be filed in appropriate case -
Petition filed against same in High Court also dismissed - Present appeal filed
for challenging the same - Held, as per Section 16 a suit can be instituted
where the property is situated - Since the suit was for specific performance of
agreement and possession of immovable property situated outside the
jurisdiction of Delhi Court, the trial court was right in holding that it had no
jurisdiction - Appeal dismissed.

JUDGMENT
C.K. Thakker, J.
1 . This appeal is filed by the appellant against the order passed by the Additional
District Judge, Delhi on May 25, 1998 in Suit No. 1036 of 1994 and confirmed by the
High Court of Delhi on November 01, 1999 in Civil Revision Petition No. 506 of 1998
holding that Delhi Court has no jurisdiction to try the suit and the plaint should be
returned to the plaintiff for presentation to proper court.
2. To appreciate the controversy raised in this appeal, admitted and/or undisputed facts
may be noted. The appellant-original plaintiff entered into a 'plot buyer agreement'
('agreement' for short) with DLF Universal Limited, respondent No. 1 - original
defendant No. 1 - on August 14, 1985 for purchase of a residential plot admeasuring
264 sq. mtrs. in Residential Colony, DLF Qutub Enclave Complex, Gurgaon, Haryana.
The agreement was in the Standard Form Contract of the first respondent. According to
the appellant, the agreement was made in Delhi. The Head Office of respondent No. 1
was situated in Delhi. Payment was to be made in Delhi. The plaintiff paid an amount of

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Rs. 12,974/- (Rupees twelve thousand nine hundred seventy four only) towards the first
installment. It is the case of the appellant that payment was made by him in
installments as per the schedule to the agreement. In spite of the payment of amount,
the first respondent unilaterally and illegally cancelled the agreement on April 04, 1988
under the excuse that the appellant had not paid dues towards construction of Modular
House to respondent No. 2- original defendant No. 2 - DLF Builders & Developers Pvt.
Ltd. The appellant objected to the illegal action of the first respondent and sent a legal
notice through an advocate calling upon the first respondent to carry out his part of the
contract but respondent No. 1 replied that the agreement had been cancelled and
nothing could be done in the matter. The appellant, in the circumstances, was
constrained to file Suit No. 3095 of 1988 on the Original Side of the High Court of Delhi
for declaration, specific performance of the agreement, for possession of the property
and for permanent injunction.
3. In the prayer clause, the plaintiff stated;
"Therefore, it is most respectfully prayed that in the facts and circumstances
stated above, this Hon'ble Court may graciously be pleased to:--
a) pass a decree of declaration to the effect that there is a valid and
existing contract with regard to plot No. L-31/4, DLF Qutab Enclave
Complex, Gurgaon, Haryana, between the plaintiff and the Defendant
No. 1;
b) pass a decree to the effect that the Defendant No. 1 is bound to
abide by the contract, i.e. plot buyer agreement dated 14.8.85 and the
unilateral rescinding/cancelling/withdrawing of the contract by the
Defendant No. 1 is bad and illegal;
c) pass a decree of specific performance directing the Defendant No. 1
to perform its part of the contract by withdrawing the letter dated
4.4.88 and further accepting the payments of the due installments with
regard to the plot from the plaintiff in accordance with the terms and
conditions of the agreement, and execute a sale deed in favour of the
plaintiff after the full money is paid to the Defendant No. 1 as per
Clause (22) of the agreement;
d) pass a decree of permanent injunction restraining the Defendants
from allotting, selling, transferring, alienating in any manner
whatsoever the said plot No. L-31/4 DLF Qutub Enclave Complex,
Gurgaon (Haryana) to any person other than the plaintiff and further
restrain them from interfering in any manner whatsoever with the
possession or rights of the plaintiff after the said plot has been handed
over to the plaintiff;
e) pass a decree of delivery of possession against the Defendant No. 1
directing him to hand over vacant and peaceful possession of the plot
No. L-31/4 DLF Qutub Enclave Complex, Gurgaon (Haryana) to the
plaintiff, or in the event, the said plot is already allotted and handed
over to some other person by the Defendant No. 1, another plot in the
same Complex of equivalent area in identical location be handed over
to the plaintiff by the Defendant No. 1.
4 . On December 09, 1988, a single Judge of the High Court of Delhi granted interim

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injunction in favour of the plaintiff. A common written statement was filed by both the
defendants on March 29, 1989 controverting the claim of the plaintiff on merits. So far
as jurisdiction of the court was concerned, it was clearly admitted and in paragraphs 18
and 19 it was stated that "jurisdiction of this Hon'ble Court is admitted". In view of
increase in pecuniary jurisdiction of the District Court, Delhi, the suit came to be
transferred from High Court of Delhi to District Court, Delhi on July 12, 1993 and it was
re-numbered as Suit No. 1036 of 1994. On February 17, 1997, the trial court framed
issues which did not include issue as to the jurisdiction of the court obviously because
jurisdiction of the court was not disputed by the defendants. As late as on August 22,
1997, i.e. after more than eight years of the filing of the written statement, the
defendants filed an application under Order 6, Rule 17 of the Code of Civil Procedure,
1908 (hereinafter referred to as the "Code") seeking amendment in the written
statement by raising an objection as to jurisdiction of Delhi Court to entertain the suit.
It was stated that the suit was for recovery of immovable property situated in Gurgaon
District. Under Section 16 of the Code, such suit for recovery of property could only be
instituted within the local limits of whose jurisdiction the property was situated. Since
the property was in Gurgaon, Delhi Court had no jurisdiction in the matter. On January
16, 1998, the application was allowed and the written statement was permitted to be
amended. The amended written statement was filed which also contained a statement
that the jurisdiction of the court was "admitted". On the basis of the amendment of
written statement, however, the learned Additional District Judge framed an additional
issue as under :
"Whether Delhi Civil court has jurisdiction to try and entertain the present suit:
OPD"?
5. After hearing the parties, the trial court by an order dated May 25, 1998 upheld the
contention of the defendants and ruled that Delhi Court had no jurisdiction to try the
suit. The plaint was, therefore, ordered to be returned to the plaintiff for presentation to
the proper court.
The Court stated;
"In this view of the matter, I have no hesitation in coming to the conclusion
that the suit falls within the ambit of Section 16 of the Code of Civil Procedure
and the proviso thereto has no application on the facts of the present case.
In view of my above discussion, it is held that the Delhi Civil Court has no
jurisdiction to try the present suit and as such, the Plaint in the present suit is
returned to the Plaintiff for presentation in the Proper Court. Parties through
their counsel are directed to present in the proper Court on 5.6.1998."
6. Being aggrieved by the said order, the appellant approached the High Court by filing
Civil Revision Petition No. 506 of 1998 which also came to be dismissed. Against the
said order, the appellant has approached this Court. Notice was issued on December 06,
1999 and parties were directed to maintain status quo. On April 17, 2000, leave was
granted, operation of the judgment was stayed and the Additional District Judge, Tis
Hazari, Delhi, was allowed to proceed with the suit but it was stated that he would not
deliver judgment "until further orders". Status quo granted earlier was ordered to be
continued. The appeal has now come up for final hearing.
7. We have heard learned counsel for the parties.
8. Ms. Indu Malhotra, learned counsel for the appellant contended that the courts below

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have committed an error of law as well as of jurisdiction in allowing the amendment in
the written statement and in holding that Delhi Court had no jurisdiction. She submitted
that the defendants were having their Head Office at Delhi, the agreement had been
entered into at Delhi, payment was to be made and in fact made at Delhi, breach of
agreement took place at Delhi and hence Delhi Court had jurisdiction to entertain the
suit and the plaintiff could have instituted the suit in Delhi Court. It was also submitted
that the parties had agreed that the Delhi Court alone had jurisdiction in all matters
arising out of the transaction. It was urged that in the facts and circumstances of the
case, the courts below should not have exercised discretionary jurisdiction in favour of
the party who had filed a written statement in which jurisdiction of Delhi Court had
been expressly admitted. The written statement was filed in 1989 but an amendment
application was moved after more than eight years. Serious prejudice had been caused
to the plaintiff due to delay on the part of the defendants. When the defendants had
waived the objection as to jurisdiction by specifically admitting the jurisdiction of Delhi
Court, amendment ought not to have been allowed by the trial court nor such order
could have been confirmed by the High Court. The learned counsel also submitted that
even after the amendment was allowed and amended written statement was filed, in the
amended reply also, the defendants had stated that the jurisdiction of the court was
"admitted".
9 . The counsel submitted that even on merits, no case had been made out by the
defendants. At the most, it was a case of accrual of cause of action in more than one
court. As Clause 28 of the agreement specifically provided that the transaction would be
subject to the jurisdiction of Delhi Court, institution of suit in Delhi Court by the
plaintiff could not have been objected to and no order could have been passed by the
trial court holding that it had no jurisdiction and the plaint was required to be returned
to the plaintiff for presentation to the proper court.
Clause 28 of the agreement reads thus;
"The Delhi High Court or Courts subordinate to it, alone shall have jurisdiction
in all matters arising out of touching and/or concerning this transaction."
10. Finally, it was submitted that at the time of granting leave and admitting appeal,
this Court permitted the trial court to proceed with the matter. Accordingly, the evidence
was led by the parties and the trial is concluded. In view of the order of this Court, the
trial court could not deliver the judgment. Considering the fact that the agreement was
executed in August, 1985 and more than two decades have passed, this Court may issue
necessary direction to the trial court to deliver judgment.
11. Mr. Rohatgi, Senior Advocate appearing for the respondents, on the other hand,
supported the order passed by the trial court and confirmed by the High Court. He
submitted that the suit relates to specific performance of agreement relating to
immovable property. In accordance with the provisions of Section 16 of the Code, such
suit can be instituted where the immovable property is situate. ("Section 16. Suits to
be instituted where subject-matter situate.-- Subject to the pecuniary or other
limitations prescribed by any law, suits--(a) for the recovery of immovable property
with or without rent or profits, (b) for the partition of immovable property, (c) for
foreclosure, sale or redemption in the case of a mortgage or change upon immovable
property, (d) for the determination of any other right to or interest in immovable
property, (e) for compensation for wrong to immovable property, (f) for the recovery of
movable property actually under distraint or attachment, Shall be instituted in the Court
within the local limits of whose jurisdiction the property is situate: Provided that a suit

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to obtain relief respecting, or compensation for wrong to, immovable property held by
or on behalf of the defendant may, where the relief sought can be entirely obtained
through his personal obedience, be instituted either in the Court within the local limits
of whose jurisdiction the property is situate, or in the Court within the local limits of
whose jurisdiction the defendant actually and voluntarily resides, or carries on business,
or personally works for gain.") Admittedly the property is situate in Gurgaon (Haryana).
Delhi Court, therefore, has no jurisdiction to entertain the suit which is for specific
performance of agreement of purchase of a plot - immovable property - situate outside
Delhi. According to the counsel, even if it was not contended by the defendants that
Delhi Court had no jurisdiction or there was an admission that Delhi Court had
jurisdiction, it was totally irrelevant and immaterial. If the court had no jurisdiction,
parties by consent cannot confer jurisdiction on it. The counsel also submitted that this
is not a case in which two or more courts have jurisdiction and parties have agreed to
jurisdiction of one court. According to Mr. Rohatgi, Section 20 of the Code would apply
where two courts have jurisdiction and the parties agree as to jurisdiction of one such
courts by restricting their right to that forum instead of the other. (" Section 20. Other
suits to be instituted where defendants reside or cause of action arises.-
-Subject to the limitations aforesaid, every suit shall be instituted in a Court within the
local limits of whose jurisdiction-- (a) the defendant, or each of the defendant where
there are more than one, at the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally works for gain; or (b) any of
the defendants, where there are more than one, at the time of the commencement of the
suit, actually and voluntarily resides, or carries on business, or personally works for
gain, provided that in such case either the leave of the Court is given, or the defendants
who do not reside, or carry on business, or personally work for gain, as aforesaid,
acquiesce in such institute; or (c) the cause of action, wholly or in part, arises.") When
Delhi Court had no jurisdiction whatsoever, no reliance could be placed either on
Section 20 of the Code or on Clause 28 of the agreement. The order passed by the trial
court and confirmed by the High Court is, therefore, legal and lawful and the appeal
deserves to be dismissed, submitted the counsel.
12. Having heard learned counsel for the parties and having considered the relevant
provisions of the Code as also the decisions cited before us, in our opinion, the order
passed by the trial court and confirmed by the High Court deserves no interference. As
stated above, it is an admitted fact that the suit relates to the recovery of immovable
property, a plot admeasuring 264 sq. mtrs. in the Residential Colony - DLF Qutub
Enclave Complex, Gurgaon. It is not in dispute by and between the parties that the
property is situate in Haryana. It is no doubt true that the defendants are having their
Head Office at Delhi. It is also true that the agreement was entered into between the
parties at Delhi. It also cannot be denied that the payment was to be made at Delhi and
some installments were also paid at Delhi. The pertinent and material question,
however, is in which court a suit for specific performance of agreement relating to
immovable property would lie?
1 3 . Now, Sections 15 to 20 of the Code contain detailed provisions relating to
jurisdiction of courts. They regulate forum for institution of suits. They deal with the
matters of domestic concern and provide for the multitude of suits which can be
brought in different courts. Section 15 requires the suitor to institute a suit in the court
of the lowest grade competent to try it. Section 16 enacts that the suits for recovery of
immovable property, or for partition of immovable property, or for foreclosure, sale or
redemption of mortgage property, or for determination of any other right or interest in
immovable property, or for compensation for wrong to immovable property shall be
instituted in the court within the local limits of whose jurisdiction the property is

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situate. Proviso to Section 16 declares that where the relief sought can be obtained
through the personal obedience of the defendant, the suit can be instituted either in the
court within whose jurisdiction the property is situate or in the court where the
defendant actually or voluntarily resides, or carries on business, or personally works for
gain. Section 17 supplements Section 16 and is virtually another proviso to that section.
It deals with those cases where immovable property is situate within the jurisdiction of
different courts. Section 18 applies where local limits of jurisdiction of different courts
is uncertain. Section 19 is a special provision and applies to suits for compensation for
wrongs to a person or to movable property. Section 20 is a residuary section and covers
all those cases not dealt with or covered by Sections 15 to 19.
14. Section 16 thus recognizes a well established principle that actions against res or
property should be brought in the forum where such res is situate. A court within whose
territorial jurisdiction the property is not situate has no power to deal with and decide
the rights or interests in such property. In other words, a court has no jurisdiction over
a dispute in which it cannot give an effective judgment. Proviso to Section 16, no
doubt, states that though the court cannot, in case of immovable property situate
beyond jurisdiction, grant a relief in rem still it can entertain a suit where relief sought
can be obtained through the personal obedience of the defendant.
The proviso is based on well known maxim "equity acts in personam, recognized by
Chancery Courts in England. Equity Courts had jurisdiction to entertain certain suits
respecting immovable properties situated abroad through personal obedience of the
defendant. The principle on which the maxim was based was that courts could grant
relief in suits respecting immovable property situate abroad by enforcing their
judgments by process in personam, i.e. by arrest of defendant or by attachment of his
property.
15. In Ewing v. Ewing, (1883) 9 AC 34 : 53 LJ Ch 435, Lord Selborne observed :
"The Courts of Equity in England are, and always have been, courts of
conscience operating in personam and not in rem; and in the exercise of this
personal jurisdiction they have always been accustomed to compel the
performance of contracts in trusts as to subjects which were not either locally
or ratione domicilii within their jurisdiction. They have done so, as to land, in
Scotland, in Ireland, in the Colonies, in foreign countries."
1 6 . The proviso is thus an exception to the main part of the section which in our
considered opinion, cannot be interpreted or construed to enlarge the scope of the
principal provision. It would apply only if the suit falls within one of the categories
specified in the main part of the section and the relief sought could entirely be obtained
by personal obedience of the defendant.
17. In the instant case, the proviso has no application. The relief sought by the plaintiff
is for specific performance of agreement respecting immovable property by directing the
defendant No. 1 to execute sale-deed in favour of the plaintiff and to deliver possession
to him. The trial court was, therefore, right in holding that the suit was covered by
Clause (d) of Section 16 of the Code and the proviso had no application.
18. In our opinion, the submission of the learned counsel for the appellant that the
parties had agreed that Delhi Court alone had jurisdiction in the matters arising out of
the transaction has also no force. Such a provision, in our opinion, would apply to
those cases where two or more courts have jurisdiction to entertain a suit and the
parties have agreed to submit to the jurisdiction of one court.

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1 9 . Plain reading of Section 20 of the Code leaves no room of doubt that it is a
residuary provision and covers those cases not falling within the limitations of Sections
15 to 19. The opening words of the section "Subject to the limitations aforesaid" are
significant and make it abundantly clear that the section takes within its sweep all
personal actions. A suit falling under Section 20 thus may be instituted in a court within
whose jurisdiction the defendant resides, or carries on business, or personally works for
gain or cause of action wholly or partly arises.
20. It is, no doubt true, as submitted by Ms. Malhotra that where two or more courts
have jurisdiction to entertain a suit, parties may by agreement submit to the jurisdiction
of one court to the exclusion of the other court or courts. Such agreement is not hit by
Section 28 of the Contract Act, 1872, nor such a contract can be said to be against
public policy. It is legal, valid and enforceable.
21. Before more than thirty years, such question came up for consideration before this
Court in Hakam Singh v. Gamon (India) Ltd.MANU/SC/0001/1971 :, [1971]3SCR314 .
It was the first leading decision of this Court on the point. There, a contract was entered
into by the parties for construction of work. An agreement provided that
notwithstanding where the work was to be executed, the contract 'shall be deemed to
have been entered into at Bombay' and Bombay Court 'alone shall have jurisdiction to
adjudicate' the dispute between the parties. The question before this Court was whether
the court at Bombay alone had jurisdiction to resolve such dispute.
22. Upholding the contention and considering the provisions of the Code as also of the
Contract Act, this Court stated :
"By Clause 13 of the agreement it was expressly stipulated between the parties
that the contract shall be deemed to have been entered into by the parties
concerned in the city of Bombay. In any event the respondents have their
principal office in Bombay and they were liable in respect of a cause of action
arising under the terms of the tender to be sued in the courts of Bombay. It is
not open to the parties by agreement to confer by their agreement jurisdiction
on a court which it does not possess under the Code. But where two courts or
more have under the Code of Civil Procedure jurisdiction to try a suit or
proceeding on agreement between the parties that the dispute between them
shall be tried in one of such courts is not contrary to public policy. Such an
agreement does not contravene Section 28 of the Contract Act."
(emphasis supplied)
2 3 . Hakam Singh was followed and principle laid down therein reiterated in several
cases thereafter. ( See Globe Transport Corporation v. Triveni Engineering Works and
Anr.MANU/SC/0011/1983 :, (1983)4SCC707 , A.B.C. Laminart (P) Ltd. and Anr. v. A.P.
Agency, Salem, MANU/SC/0406/1989, Patel Roadways Ltd., Bombay v. Prasad Trading
Co.MANU/SC/0280/1992 :, [1991]3SCR391 , R.S.D.V. Finance Co. (P) Ltd. v.Shree
Vallabh Glass Works Ltd.MANU/SC/0320/1993 :, AIR1993SC2094 , Angile Insulations v.
Devy Ashmore India Ltd. and Anr.MANU/SC/0338/1995 :, [1995]3SCR443 , Shriram
City Union Finance Corporation Ltd. v. Rama MishraMANU/SC/2500/2000 :,
(2002)9SCC613 , New Moga Transport Co. v. United India Insurance Co. Ltd. and
Ors.MANU/SC/0398/2004 : , AIR2004SC2154 .
24. The question, however, is whether Delhi Court has jurisdiction in the matter. If the
answer to that question is in the affirmative, the contention of the plaintiff must be
upheld that since Delhi Court has also jurisdiction to entertain the suit and parties by an

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agreement had submitted to the jurisdiction of that court, the case is covered by Section
20 of the Code and in view of the choice of forum, the plaintiff can be compelled to
approach that court as per the agreement even if other court has jurisdiction. If, on the
other hand, the contention of the defendant is accepted and it is held that the case is
covered by Section 16 of the Code and the proviso to Section 16 has no application, nor
Section 20 would apply as a residuary clause and Delhi Court has no jurisdiction in the
matter, the order impugned in the present appeal cannot be said to be contrary to law.
As we have already indicated, the suit relates to specific performance of an agreement
of immovable property and for possession of plot. It is, therefore, covered by the main
part of Section 16. Neither proviso to Section 16 would get attracted nor Section 20
(residuary provision) would apply and hence Delhi Court lacks inherent jurisdiction to
entertain, deal with and decide the cause.
2 5 . The High Court considered the submission of the plaintiff that Delhi Court had
jurisdiction to entertain the suit but negatived it. The Court, after referring to various
decisions cited at the Bar, concluded;
"From the aforesaid principles laid down by the Supreme Court it is abundantly
clear that where the parties to a contract agreed to vest jurisdiction to a
particular Court although cause of action has arisen within the jurisdiction of
different Courts, including that particular Court, the same cannot be said to be
void or to be against the public policy. It was also made clear in the said
decision that if however a particular Court does not have any jurisdiction to
deal with the matter and no part of cause of action has arisen within the
jurisdiction of that Court, the parties by their consent and mutual agreement
cannot vest jurisdiction in the said Court. Therefore, a clause vesting
jurisdiction on a Court which otherwise does not have jurisdiction to decide the
matter, would be void as being against the public policy."
2 6 . We are in agreement with the above observations and hold that they lay down
correct proposition of law.
2 7 . Ms. Malhotra, then contended that Section 21 of the Code, requires that the
objection to the jurisdiction must be taken by the party at the earliest possible
opportunity and in any case where the issues are settled at or before settlement of such
issues. In the instant case, the suit was filed by the plaintiff in 1988 and written
statement was filed by the defendants in 1989 wherein jurisdiction of the court was
'admitted'. On the basis of the pleadings of the parties, issues were framed by the court
in February, 1997. In view of the admission of jurisdiction of court, no issue as to
jurisdiction of the court was framed. It was only in 1998 that an application for
amendment of written statement was filed raising a plea as to absence of jurisdiction of
the court. Both the courts were wholly wrong in allowing the amendment and in
ignoring Section 21 of the Code. Our attention in this connection was invited by the
learned counsel to Hira Lal v. Kali NathMANU/SC/0041/1961 :, [1962]2SCR747 and
Bahrein Petroleum Co. v. PappuMANU/SC/0012/1965 : , (1966)IILLJ144SC .
2 8 . We are unable to uphold the contention. The jurisdiction of a court may be
classified into several categories. The important categories are (i) Territorial or local
jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So
far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction
has to be taken at the earliest possible opportunity and in any case at or before
settlement of issues. The law is well settled on the point that if such objection is not
taken at the earliest, it cannot be allowed to be taken at a subsequent stage.

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Jurisdiction as to subject matter, however, is totally distinct and stands on a different
footing. Where a court has no jurisdiction over the subject matter of the suit by reason
of any limitation imposed by statute, charter or commission, it cannot take up the cause
or matter. An order passed by a court having no jurisdiction is nullity.
29. In Halsbury's Laws of England, (4th edn.), Reissue, Vol. 10; para 317; it is stated;
317. Consent and waiver. Where, by reason of any limitation imposed by
statute, charter or commission, a court is without jurisdiction to entertain any
particular claim or matter, neither the acquiescence nor the express consent of
the parties can confer jurisdiction upon the court, nor can consent give a court
jurisdiction if a condition which goes to the jurisdiction has not been performed
or fulfilled. Where the court has jurisdiction over the particular subject matter
of the claim or the particular parties and the only objection is whether, in the
circumstances of the case, the court ought to exercise jurisdiction, the parties
may agree to give jurisdiction in their particular case; or a defendant by
entering an appearance without protest, or by taking steps in the proceedings,
may waive his right to object to the court taking cognizance of the proceedings.
No appearance or answer, however, can give jurisdiction to a limited court, nor
can a private individual impose on a judge the jurisdiction or duty to adjudicate
on a matter. A statute limiting the jurisdiction of a court may contain provisions
enabling the parties to extend the jurisdiction by consent."
30. In Bahrein Petroleum Co., this Court also held that neither consent nor waiver nor
acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit.
It is well-settled and needs no authority that 'where a court takes upon itself to exercise
a jurisdiction it does not possess, its decision amounts to nothing.' A decree passed by
a court having no jurisdiction is non-est and its validity can be set up whenever it is
sought to be enforced as a foundation for a right, even at the stage of execution or in
collateral proceedings. A decree passed by a court without jurisdiction is a coram non
judice.
31. I n Kiran Singh v. Chaman PaswanMANU/SC/0116/1954 :, [1955]1SCR117 , this
Court declared;
"It is a fundamental principle well established that a decree passed by a court
without jurisdiction is a nullity and that its invalidity could be set up whenever
and it is sought to be enforced or relied upon, even at the stage of execution
and even in collateral proceedings. A defect of jurisdiction ...
strikes at the very authority of the court to pass any decree, and such a defect
cannot be cured even by consent of parties."
(emphasis supplied)
32. The case on hand relates to specific performance of a contract and possession of
immovable property. Section 16 deals with such cases and jurisdiction of competent
court where such suits can be instituted. Under the said provision, a suit can be
instituted where the property is situate. No court other than the court where the
property is situate can entertain such suit. Hence, even if there is an agreement between
the parties to the contract, it has no effect and cannot be enforced.
33. I n Setrucharlu v. Maharaja of Jeypore, 46 IA 151 : AIR 1919 PC 150, a suit was
instituted in subordinate court for possession of mortgage property partly situated in
Vizagapatam and partly in a Schedule District to which the provisions of the Code did

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not apply. No objection as to jurisdiction of the court was taken by the defendant and
the decree was passed. In appeal, however, such objection was taken by the defendant.
Relying on Section 21 of the Code, the High Court overruled the objection. The
defendant approached the Privy Council. Upholding the contention and partly reversing
the decree, the Judicial Committee of the Privy Council stated;
"The learned Judges of the Court of Appeal thought that the matter was met by
Section 21 of the Code, which provides that no objection as to the place of
suing shall be allowed by any appellate court unless the objection was taken in
the court of First Instance, which in this case had admittedly not been done.
Their Lordships cannot agree with this view. This is not an objection as to the
place of suing; it is an objection going to the nullity of the order on the ground
of want of jurisdiction."
(emphasis supplied)
3 4 . I n New Mofussil Co. Ltd. and Anr. v. Shankerlal Narayandas
MundadeMANU/MH/0141/1940 :, AIR1941Bom247 , almost a similar question came up
for consideration before the High Court of Bombay. In that case, a suit for specific
performance of contract and possession of immovable property situated at Dhulia was
filed in the Court of First Class Subordinate Judge, Dhulia against defendant No. 1 -
Company in liquidation. The registered office of the Company was in Bombay and the
agreement was finally concluded in Bombay. It was, therefore, contended that Dhulia
Court had no jurisdiction to try the suit. It was, however, held by the High Court that
the case was covered by Clause (d) of Section 16 of the Code, the Proviso had no
application and since the property was situated at Dhulia, Subordinate Judge, Dhulia
had jurisdiction to entertain and try the suit. (See also Anand Bazar Patrika Ltd. v.
Biswanath PrasadMANU/BH/0015/1986 : , AIR1986Pat57 )
35. In the instant case, Delhi Court has no jurisdiction since the property is not situate
within the jurisdiction of that court. The trial court was, therefore, right in passing an
order returning the plaint to the plaintiff for presentation to the proper court. Hence,
even though the plaintiff is right in submitting that the defendants had agreed to the
jurisdiction of Delhi Court and in the original written statement, they had admitted that
Delhi Court had jurisdiction and even after the amendment in the written statement, the
paragraph relating to jurisdiction had remained as it was, i.e. Delhi Court had
jurisdiction, it cannot take away the right of the defendants to challenge the jurisdiction
of the court nor it can confer jurisdiction on Delhi Court, which it did not possess. Since
the suit was for specific performance of agreement and possession of immovable
property situated outside the jurisdiction of Delhi Court, the trial court was right in
holding that it had no jurisdiction.
36. The learned counsel for the appellant drew out attention to Rule 32 of Order XXI of
the Code which relates to execution. It, however, presupposes a decree passed in
accordance with law. Only thereafter such decree can be executed in the manner laid
down in Rules 32, 34 or 35 of Order XXI. Those provisions, therefore, have no
relevance to the question raised in the present proceedings.
3 7 . For the foregoing reasons, in our opinion, no case has been made out by the
appellant against the order passed by the trial court and confirmed by the High Court.
The appeal, therefore, deserves to be dismissed and is accordingly dismissed. In the
facts and circumstances of the case, however, there shall be no order as to costs.
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